FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO: 

FROM: 

DATE: 

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

August 30, 2022

AOR 2022-15 (Rouda) Comment

Attached is a comment on AOR 2022-15 (Rouda) from 

Campaign Legal Center (“CLC”).

Attachment
August 30, 2022

Danita Alberico, Esq.

Federal Election Commission

1050 First Street NE

Washington, DC 20463

ao@fec.gov 

RE: Advisory Opinion Request 2022-15 (Rouda) 

Dear Ms. Alberico, 

Campaign Legal Center (“CLC”) respectfully submits this comment urging the 

Commission to make clear that the conduct proposed in Advisory Opinion 

Request 2022-15 (Rouda) would be illegal. The requestor purports to rely on 

the recent Supreme Court decision in FEC v. Ted Cruz for Senate, 142 S. Ct. 

1638 (2022), and a variety of inapposite Commission advisory opinions to claim 

a legal right to reinstate campaign loans he forgave long ago. But neither the 

holding nor the reasoning of Cruz requires such a result, and no statute or 

Commission regulation authorizes it. 

Background

During the 2018 election cycle, federal candidate Harley Rouda loaned 

$1,625,000 to his authorized campaign committee, Harley Rouda for Congress 

(“the Committee”) in connection with the 2018 primary election. Within twenty 

days after the 2018 primary election, the Committee repaid Rouda 

$472,127.93, and repaid an additional $250,000 in 2018 and 2019 as permitted 

under Commission regulations. Rouda forgave the remaining loan balance of 

$907,872.07 pursuant to the loan repayment limits of the Federal Election 

Campaign Act (“FECA”) and Commission regulations as they stood at the time. 

Now, following the Supreme Court’s decision in Cruz, Rouda and the 

Committee ask the Commission to declare that it would be legal for the 

requestors to revive the loan balance that Rouda forgave years ago. According 

to the AOR, reviving the loan would allow Rouda to personally withdraw funds 
2

from the Committee—either existing campaign funds or new contributions 

raised for this purpose of personally repaying Rouda.

The Conduct Proposed in the Request Is Not Lawful.

The Supreme Court’s decision in Cruz permits the use of post-election 

campaign contributions to repay outstanding candidate loans. But that is not 

the situation presented in this advisory opinion request, where the requestor 

has no loans outstanding. Indeed, the question here is not about the legality of 

the proposed loan repayment at all. Rather, the AOR presents a much simpler

question: does campaign finance law permit Rouda to reinstate an already 

forgiven loan?

It would be exceptionally odd for the Commission to read Cruz as requiring the

legal fiction of retroactively un-forgiving a loan. The Supreme Court’s holding

in that case turned on the impermissible burden that the prior repayment 

regime imposed at the time a candidate decided whether and how much money 

to loan to their campaign. See Cruz, slip op. at 1 (“This limit on the use of postelection funds . . . inhibit[s] candidates from making such loans in the first 

place.”). Specifically, the Court held that the loan repayment restriction was 

unconstitutional because it would cause some candidates to limit their selffunding via loans, without the restriction advancing sufficient anti-corruption 

interests to justify that burden. See id. at 11, 13.

Both on its face and as a matter of logic, the Court’s reasoning does not mean 

that a candidate who made a choice multiple elections ago about how much to 

loan his campaign under the prior regime has any legal right to reclaim that 

money. To state what should be obvious: it is impossible for Rouda to make a 

different choice in 2022 about how much money he loaned his campaign in 

2018. Perhaps Rouda would have chosen to loan his campaign more in 2018 

under the post-Cruz rules, and perhaps he wouldn’t; either way, there is 

nothing the Commission can do now to relieve him of any First Amendment 

burden he faced in making that decision years ago. Cruz, therefore, cannot be 

read to suggest that Rouda is currently experiencing any First Amendment 

harms. Accordingly, Cruz does not support Rouda’s request.

In the absence of a Court mandate, the only question that remains for the 

Commission in evaluating the advisory opinion request is whether the 

proposed conduct is consistent with FECA and the Commission’s regulations. 

This is not a difficult question: FECA prohibits Rouda from personally

withdrawing contributions from his campaign, see 52 U.S.C. 30114(b), and 

Commission regulations permit post-election fundraising only to repay 

outstanding debts, see 11 C.F.R. 110.1(b)(3), of which Rouda’s 2018 campaign 

has none. That should be the end of the inquiry.
3

Draft A cites a smattering of advisory opinions in which the Commission 

permitted campaigns to correct transactions that had been unintentionally 

mis-reported. See Advisory Opinion 1990-27 (Conn. Republican Party) 

(permitting amendment to correct “honest clerical mistake”); Advisory Opinion 

2007-07 (Craig) (permitting amendment of reports to include loans that had 

been inadvertently mis-reported as contributions); Advisory Opinion 2006-37 

(Kissin for Congress) (same); Advisory Opinion 1997-04 (Firebaugh)

(permitting amendment of reports where transactions were “intended as 

advances, but were mistakenly reported as simply an in-kind contribution”).

These conclusions are unremarkable: the Commission has an extensive 

amendment process to allow for—indeed, to encourage—committees to correct 

mistakes in their reports, and in each of these opinions the requestors provided

conclusive, sworn documentation showing that the original reports had been 

erroneous. For the same reasons, these advisory opinions are also irrelevant to 

the request at hand, where the requestor is not seeking to correct a factual

error, but rather to retroactively change the legally operative nature of a 

transaction he conducted and correctly reported years ago. Nothing in the 

advisory opinions cited in Draft A speaks to such a change.1

* * *

The Commission must act as directed by law, not pursuant to a vague sense of 

equities. See, e.g., Interpretive Statement of Chairman Allen Dickerson 

Concerning 11 C.F.R. § 103.3 and the Disgorgement of Unlawful Contributions,

at 1 (Apr. 22, 2022) (noting that “however laudable our intentions,” the 

Commission cannot adopt an “approach [that] lacks legal support” or “violates 

the clear text of our regulations”). But to the extent the Commission is now 

considering whether to disregard the law in favor of extra-legal considerations, 

the Commission must also weigh countervailing equities. In particular, as the 

comments to this request demonstrate, Rouda is not alone: to allow Rouda to 

reinstate a long-ago forgiven loan and seek campaign repayment would allow

any former candidate from the last two decades—including current 

officeholders, see Cruz, slip op. at 20 (noting that one-third of winning 

candidates who made loans did not receive full repayment)—to reinstate 

1 Draft A also cites Advisory Opinion 2008-20 (National Right to Life Comm.), in which 

the requestor sought to reimburse funds that its separate segregated fund (“SSF”) had spent 

on ads while awaiting an FEC advisory opinion on whether the ads could be paid for using its 

general treasury funds. The only reason the SSF had spent the money in the first place was 

because the Commission had failed to promptly issue the first advisory opinion. See Advisory 

Opinion Request 2008-20 at 2 (noting that opinion did not issue until more than one month 

after meeting at which five Commissioners agreed on result, during which time requestor was 

required to pay for its advertising). That unusual confluence of timing is not present here. 

Furthermore, in approving the general treasury reimbursement in Advisory Opinion 2008-20, 

the Commission noted as a material fact that the ads could have been made out of the general 

treasury in the first place. Advisory Opinion 2008-20 at 3. In contrast, Rouda undisputedly 

could not have left his loans outstanding in 2018.
4

previously forgiven loans and solicit campaign contributions for the sole 

purpose of paying themselves. Such a widespread, retroactive cash-grab

(which, as noted previously, is not compelled by the Cruz decision) would 

hardly serve the interests of voters or otherwise advance FECA’s goal of 

limiting corruption and the appearance of corruption. 

For the foregoing reasons, we respectfully urge the Commission to reject 

Rouda’s request, and we thank the Commission for the opportunity to submit 

this comment. 

Sincerely, 

 /s/ Saurav Ghosh 

Saurav Ghosh

Erin Chlopak

Adav Noti

Campaign Legal Center

1101 14th St. NW, Suite 400

Washington, DC 20005